“Creates a real risk”: Expert warns Fani Willis faces two “timebombs” that could blow up Trump case

An attorney for Donald Trump bemoaned a Georgia judge’s decision against outright disqualifying Fulton County District Attorney Fani Willis from the former president’s election interference case in the state Friday.

According to lawyer Steve Sadow, Trump’s lead defense counsel, Judge Scott McAfee did not go far enough in ruling that either Willis or the special prosecutor she had a romantic relationship with, Nathan Wade, must step down from the case in order for it to progress. 

“While respecting the Court’s decision, we believe that the Court did not afford appropriate significance to the prosecutorial misconduct of Willis and Wade, including the financial benefits, testifying untruthfully about when their personal relationship began, as well as Willis’ extrajudicial MLK ‘church speech,’ where she played the race card and falsely accused the defendants and their counsel of racism,” Sadow said in a statement, according to The Hill.

“We will use all legal options available as we continue to fight to end this case, which should never have been brought in the first place,” he added.

Whether an appeal from Trump or his co-defendants on the matter will be successful is unclear. The judge and appellate court granting such a request is “wholly discretionary” and presents “substantial roadblocks,” Atlanta defense attorney Andrew Fleischman told Salon. 

In order to appeal the decision, Trump’s legal team would have to first obtain a certificate of immediate review, which Trump and seven co-defendants submitted a motion for Monday afternoon, from the trial court within 10 days. Then the Court of Appeals would have to approve the application for the appeal, which they have 45 days to decide. If either McAfee or the Court of Appeals say no — which they can do “for any reason”  — “that’s the end of it,” Fleischman said. 

If the court does grant an appeal, those proceedings would be likely to push the trial back to late 2025 at the earliest, he added.

The former president’s Georgia prosecution took an unexpected turn in January when an attorney for co-defendant Mike Roman filed a motion accusing Willis of financially benefitting from an improper romantic relationship with Wade. Willis first addressed the allegations later that month, suggesting the defense was “playing the race card” by applying greater scrutiny on Wade because he is Black. Willis admitted in February to once being romantically involved with the special prosecutor but denied the relationship created a conflict of interest.

In more than three days of hearings, defense attorneys attempted to show that Willis hired her romantic partner to prosecute Trump and reaped rewards in the form of lavish vacations they shared, and argued Willis’ entire office should be removed from the case. Prosecutors characterized the claims as unsubstantiated, and Willis delivered a fierce testimony — which the judge described Friday as “unprofessional” — denying the allegation and stating her relationship with Wade began after she hired him. 

McAfee on Friday morning determined that Willis’ past romantic relationship with Wade amounted to an “appearance of impropriety” in the sprawling racketeering case and prohibited the prosecutors from continuing to oversee it together. 

“As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed,” McAfee wrote in the 23-page ruling.

“Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences,” he said. “As long as Wade remains on the case, this unnecessary perception will persist.” 

McAfee’s decision was “clever” for a few reasons, Fleischman said. Despite being a scathing rebuke of what the judge described as Willis’ “tremendous lapse in judgment,” McAfee’s ruling did not directly disqualify her office, disallowing her the opportunity to appeal it. 

It also tried to tackle the “sparse” caselaw on prosecutor disqualification, “drawing a distinction between actual conflict and appearance of impropriety, and explaining the reasoning for why there was an appearance of impropriety,” Fleischman explained.

An “accurate” read of the decision would be that McAfee did technically disqualify the district attorney and her team but created a “kind of exit ramp” hinging whether the disqualification would go into effect on Wade’s resigning from the case, according to Georgia State University law professor Clark D. Cunningham.

Wade submitted his resignation letter just hours after McAfee’s ruling, writing that he was doing so in part “in the interest of democracy.” Willis, then, can still prosecute the case, but the ruling doesn’t necessarily favor her, Cunningham told Salon.

“McAfee’s order is not a win for the district attorney until we know whether a discretionary appeal is going to be allowed,” he said. “If a discretionary appeal is allowed it’s kind of a ‘winning the battle, losing the war’ experience for the district attorney because that creates a real risk that the case doesn’t go to trial before the election, which is I think a bad outcome for everybody.”

Willis’ office faces two “timebombs,” he added: the possibility that the Court of Appeals decides to hear an appeal on the matter and reverse McAfee, and a potential blow from the newly operational Prosecuting Attorneys’ Qualifications Commission of Georgia, which has the power to suspend or remove Willis and already has a complaint against the prosecutor in front of it.

The “best option” for her is to take a “temporary leave of absence” and allow a chief deputy in her office to manage the case, Cunningham said, which would make the probability of Trump’s team being granted a discretionary appeal “much less likely.”

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But, assuming Trump’s legal team fails to secure an appeal, all parties will now start “gearing up” for a trial, setting a court date and addressing remaining pretrial matters, Fleischman said. 

Willis, he suspected, is likely to file a motion seeking to bar the defendants from discussing the judge’s rulings on her credibility, while the defendants may file a request for a gag order on the district attorney “to prevent racial arguments.”

Cunningham recommends Willis’ office “move now” — to sever Trump’s case from the other defendants and schedule his trial for this spring. The long-term delays in Trump’s federal criminal cases and the Manhattan criminal case’s recent 30-day delay provide Georgia prosecutors an opening to get a jumpstart on what he said would be “very valuable,” televised proceedings for Americans.

“Up till now everything has been spin and political argument and speeches,” he said. “But a trial is trial, and it effectively puts the American public in the jury box.”